delivered the opinion of the court.
B. L. Lee and Eliza Lee filed a motion for judgment against George Lambert and Charlie Lambert claiming that the defendants owed them approximately $3,000 for hauling coal over their land, and for “damages”. Many pleadings and amended pleadings, hereinafter referred to, were filed in an attempt to bring the parties to issue. Upon the trial of the case, at the сonclusion of the evidence, the
The record discloses that Standard Bаnner Coal Corporation was the owner of all the minerals in a large boundary of land in Dickenson county. Eliza Lee, one of the plaintiffs, wife of B. L. Lee the other plaintiff, ownеd 40 acres of surface overlying part of the Standard Banner minerals. Mrs. Lee acquired this 40-acre tract from her mother. Her deed provided that Standard Banner Coal Corporation had the right to haul coal across and under the land,, including the right to construct roads across the same.
By leases, George and Charlie Lambert, defendants, acquired from Stаndard Banner all the rights that Standard Banner had in the coal and surface of plaintiffs’ land.
On June 10, 1946, George C. Long who had a coal lease from Standard Banner entered into a written сontract with the Lees, agreeing to pay them $10 per month for the right to haul coal across the 40 acres of surface. On June 26, 1944, Rufus V. McCoy and Elmer Poore, holding a similar lease, еntered into a five-year contract with the Lees, agreeing to pay them $10 per month for the right to haul coal across the surface.
George and Charlie Lambert acquired the Long and McCoy leases which were later merged into a direct lease from Standard Banner. They did not enter into a written agreement with the Lees either independently or by way of assignment of the McCoy and Long agreements; however, they paid the Lees $10 per month for haulage on the McCoy lease until 1948 when they subleased the property to one Stal Lambert and thereafter Stal Lambert continued the payments until February, 1950, at which time a chain was placed across the road by the Lees, blocking the same.
George аnd Charlie Lambert paid the Lees for haulage on the Long lease at the rate of $10 per month until one Ransom Lambert took over the lease, after which he paid the $10, according to his contract, for every month he operated the mines.
On June 19, 1954, the present motion for judgment was filed against George and Charlie Lambert alleging a suit in contract and tort, to which a demurrer for misjoinder of causes of action was interposed and sustained. Thereafter several pleadings were filed, including an amended motion for judgment, and on December 2, 1954, a bill of particulars was filed in which plaintiffs claimed: (1) A written assignment of the Long contract binding defendants to
At this stage plaintiffs sought to establish and prove their case under contracts (1) and (2) as outlined above. Failing in this, and adding confusion to the situation, they changed their position and sought to bring into the picture contract number (3),. the alleged “John W. Flannagan contract”, thus attempting to merge the three contracts into one.
During the progrеss of the trial the evidence sought to be introduced by the Lees became so at variance with the allegations in the motion for judgment and claims in the bill of particulars that the court was prompted to ask their attorney:
“THE COURT: Mr. French, are you relying upon the implied contract for use and occupancy or are you relying on an express contrаct, and is the contract in writing or is it not?
“MR. FRENCH: We are relying on an express contract written up with John W. Flannagan in January or February of 1950, and delivered to Glyn Phillips, attorney for plaintiff, and which has been lost, or the plaintiffs’ copy has been lost. It is provided [in the contract] that the defendants would pay for the benefit received by them for hauling a large amount of cоal, to-wit, 39,000 tons. The proof will be that Mr. Lee, one of the plaintiffs, went to the defendants with his lawyer, Glyn Phillips,, and the defendants’ lawyer, John W. Flannagan, deceased, and told them that it was 39,000 tons оf coal that they had hauled over him, and they agreed that it was 39,000 tons, but that they would pay him a reasonable amount for the benefit they had received for hauling such coal as was actually hauled over.”
Suffice it to say that the “John W. Flannagan contract” as outlined by Mr. French was never established by proof. Much evidence was introduced which threw little or nо fight upon the confused issues. It was clearly established by the evidence that, while they were not legally bound to do so, the defendants paid the Lees $10 per month as long as they operated the mining leases in question; all
The trial court, in ruling on the motion to strike the evidence, stated:
“As already indicated when the motion to strike was made at the close of plaintiffs’ evidence, the court had difficulty in seeing how any verdict for the plaintiffs could be sustained. The motion to strike was overruled at that time because the court prеferred to hear all of the evidence presented in the case. As stated in the recent case of the Bank of Giles County v. Mason, 199 Va. 176 , [98 S.E. 2d 905 ]: ‘Defendant is supposed to know the plaintiff’s grievances only frоm his statement of them in the pleadings. Pleadings are as esential as proof, and no relief should be granted that doesn’t substantially accord with the case as made in the pleаdings.’ Stanley v. Mullins,187 Va. 193 , 196,45 S. E. 2d 881 , 883; Potts v. Mathieson Alkali Works,165 Va. 196 , 207,181 S. E. 521 , 525. ‘The relief granted should in any event have been limited to the grievance complained of in the petition.’ This rule is applicable in proceedings at law, as well as prоceedings in equity. The plaintiffs’ notice of motion alleges an express contract alleged to have been made in writing. The burden of proof is upon the plaintiff to presеnt evidence which is substantially in accord with the case alleged by the pleadings. The plaintiffs’ pleadings in this case, including the bill of particulars, are not as clear as they might havе been made. In order to clarify the situation, at the beginning of this case * * * the court asked counsel for the plaintiff to state to the court the plaintiffs’ claim upon which the plaintiff relied for recovery. Counsel for the plaintiff stated * * # that the plaintiff was relying upon an express contract which has been referred to many times * # # as the John W. Flannagan contract. * # # Under the rights set forth in this deed [the deed to Mrs. Lee] the defendants clearly had the right to haul the coal which they had under lease over the plaintiff’s land. According to the plaintiffs’ evidence, it was this chancery suit in whiсh Stallard Lambert and others sought to enjoin Eliza L. Lee and Bert Lee from interfering with their right to haul the coal over the Eliza Lee tract of land. Regardless of what had taken plaсe between the parties up until that time, it is sufficiently clear according to the plaintiffs’ testimony, as well as the plaintiffs’ pleadings and statement of plaintiffs’ counsel, that as a result of this injunction suit [seeking to have the chain removed from across the road] the parties met * * *, and
We fully agree with the trial court that the evidence introduced was not in accord with the pleadings, and clearly there was no proof within the allegations of the pleadings or without the allegations establishing any sum due by the defendants to the plaintiffs.Accordingly the judgment is
Affirmed.